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Analysis: Ruling on health reform will leave much unsettled

ATLANTA — More than health reform sits on the bubble awaiting the Supreme Court’s decision.

Also at issue are powers the federal government has relied on to effect everything from the desegregation of lunch counters to the drinking age.

“This case is not about health care. That just happens to be the fact matter of the bill. The case is about federalism,” Georgia Attorney General Sam Olens said at a breakfast forum Wednesday hosted by McKenna Long & Aldridge for its legal clients. “The case is about whether the court is going to view the Constitution the way the founders viewed it, which is that the federal government has limited, enumerated powers or whether Congress can pass whatever Congress wants.”

Georgia is one of 26 states that prevailed in lower courts in challenging the reform law’s constitutionality. They argued that the Constitution’s “commerce clause” was never meant to stretch as far as giving Washington power over individuals’ purchase decisions — including decisions not to purchase health coverage. And they say Congress is being coercive to threaten the withholding of Medicaid funds to states that refuse to expand eligiblity for the jointly funded insurance plan nominally for the poor, aged and blind.

A reading of The Federalist Papers, in which three of the founding fathers explain their rationale for the wording in the Constitution, reveals that the commerce clause was intended to prevent states from raising trade barriers against each other. As independent, mini nations forming a cooperative confederation, the states might have otherwise reserved the right to determine their own trade policies. So, the authors of the Constitution spelled out that Congress would have sole responsibility for regulating interstate commerce.

Over the years, Congress has interpreted the commerce clause as giving it broad powers over many aspects of daily life not necessarily seen as purely economic. For instance, sponsors of civil-rights laws relied on the commerce clause to prohibit racial segregation on interstate bus lines, the concept the Freedom Riders were testing.

Originally, only companies that did business across state lines were thought to be subject to federal mandates. But the Obama administration expanded that premise to include individuals — even those who engage is no interstate commerce.

Olens and other opponents of health reform say it’s going too far to claim that Congress can order people with no cross-state sales to buy insurance.

If the court strikes down the individual-mandate provision of health reform, it could shatter the foundation of many other federal powers.

Every major social change in our country’s history has been based on the commerce clause, notes McKenna Long constitutional expert Bruce Brown.

“Federalism is one of the most hotly contested issues in our country’s history. It has come up in all the big moments in our constitutional history,” he said.

And if the court also buys the states’ argument that Congress has been coercive, another cornerstone of federal power would come tumbling down.

State laws on seat belts, for example, are uniform because Congress threatens to withhold highway-construction money from states that don’t agree with Washington. Even the minimum drinking age and test requirements from No Child Left Behind are based on a funding threat.

“All across the board, the regulations that you see are nominally state regulations are there because the federal government is saying, ‘You don’t have to have a 70 mph speed limit, but if you want one thin dime of highway money, you’d better have a 70 mph speed limit,’” Brown said.

Should the court restrict the definition of the commerce clause in the instance of health care, states-rights supporters could use their ruling as a basis to challenge what they consider to be other examples of federal coercion.

Olens said he doesn’t have a stack of lawsuits drafted in his desk drawer ready to challenge other instances of coercion or commerce clause overreaching.

“My office doesn’t have a join suing the federal government. I’d rather be partnering with the federal government,” he said.

That doesn’t mean other states want to file challenges. The current conservative tilt to the court could mean the unraveling of substantial federal power across a host of issues.

Future presidents may end up with even less ability to affect domestic matters. Once consequence could be reduced voter interest in federal elections if presidents and members of Congress are limited to impacting mostly defense and international affairs.

As Brown notes, the commerce clause figured in some of the largest court decisions, from Marbury versus Madison to Dred Scott and cases challenging the New Deal.

“I think the next generation is going to look back and see that this case is one of those cases, one way or another,” he said.

Walter Jones is the bureau chief for the Morris News Service and has been covering state politics since 1998. He can be reached at walter.jones@morris.com, (404) 589-8424 or on Twitter @MorrisNews.